Relevancy and reasons for excluding relevant evidence - Methods of proving character

Learning Outcomes

This article explains the permissible methods for proving a person's character or character trait under the Federal Rules of Evidence when character evidence is admissible. After reading this article, you will understand when reputation testimony, opinion testimony, and specific acts evidence can be used to prove character, enabling you to analyze how character evidence is presented in MBE fact patterns.

MBE Syllabus

For the MBE, you must understand the specific ways character evidence can be introduced once its admissibility has been established (often through an exception to the general ban on character evidence for propensity). This includes knowing:

• The general prohibition against character evidence to prove conformity therewith (FRE 404(a)).
• Situations where character evidence is admissible (e.g., character as an essential element, mercy rule in criminal cases).
• The specific methods allowed by FRE 405: Reputation testimony, Opinion testimony, and Specific Instances of Conduct.
• When each method of proof is permissible.
• The rules governing cross-examination of character witnesses regarding specific acts.
• How FRE 404(b) allows specific acts for non-propensity purposes (MIMIC).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a civil case for defamation where the defendant claims truth as a defense, alleging the plaintiff is a dishonest person, how may the defendant prove the plaintiff's character for dishonesty?
   1. Only through reputation testimony.
   2. Only through opinion testimony.
   3. Through reputation, opinion, or specific acts evidence.
   4. Only through specific acts evidence.
2. A defendant in a criminal assault case calls a witness to testify that the defendant has a reputation in the community for peacefulness. On cross-examination, which question is most likely permissible for the prosecutor to ask this witness?
   1. "Did you know that the defendant was arrested for battery last year?"
   2. "Have you heard that the defendant was suspended from school for fighting five years ago?"
   3. "In your opinion, is the defendant a violent person?"
   4. "Were you aware that the defendant owns several firearms?"
3. Under FRE 405, specific instances of a person's conduct may be used to prove character:
   1. Whenever character evidence is admissible.
   2. Only on cross-examination of a character witness.
   3. Only when character is an essential element of a charge, claim, or defense.
   4. Never; specific acts are only admissible for non-propensity purposes under FRE 404(b).

Introduction

Federal Rule of Evidence (FRE) 404(a) generally prohibits the introduction of evidence concerning a person's character or character trait for the purpose of proving that the person acted in conformity therewith on a particular occasion. This reflects a policy judgment that such evidence carries a high risk of unfair prejudice, confusion of the issues, and waste of time, often outweighing its probative value regarding specific conduct.

However, FRE 404(a) contains exceptions, and character evidence is sometimes admissible, such as when character itself is an essential element of a charge, claim, or defense, or when offered by a criminal defendant under the "mercy rule." When character evidence is deemed admissible, FRE 405 dictates the specific methods by which that character can be proven. Understanding these permissible methods is essential for analyzing evidence questions on the MBE.

Methods of Proving Character Under FRE 405

FRE 405 provides three distinct methods for proving character when character evidence is admissible: (1) Reputation Testimony, (2) Opinion Testimony, and (3) Specific Instances of Conduct. The availability of these methods depends on the purpose for which the character evidence is being offered.

Reputation or Opinion Testimony (FRE 405(a))

When evidence of a person’s character or character trait is admissible (typically under a FRE 404(a) exception), FRE 405(a) states that proof must be made by testimony about the person’s reputation or by testimony in the form of an opinion.

Key Term: Reputation Evidence
Testimony concerning the general estimation in which a person is held within a relevant community (e.g., place of work, residence).

Key Term: Opinion Evidence
Testimony based on the witness's personal knowledge and assessment of another person's character trait.

This is the primary method for proving character when it's offered circumstantially (e.g., under the mercy rule in criminal cases). The witness testifying must have sufficient familiarity with the person's reputation or have a sufficient basis for forming an opinion about the relevant character trait.

• Basis: The party offering the testimony must establish a basis showing the witness's familiarity with the person's reputation or the basis for their opinion.
• Direct Examination: On direct examination, the inquiry is limited to reputation or opinion regarding the relevant trait. Specific instances of conduct cannot be elicited on direct.

Cross-Examination of Character Witnesses (FRE 405(a))

On cross-examination of a character witness (one who has testified about reputation or opinion), the court may allow inquiry into relevant specific instances of the person’s conduct.

• Purpose: This inquiry tests the witness's knowledge and the basis for their opinion or assessment of the person's reputation.
• Form: The question typically takes the form, "Have you heard...?" or "Did you know...?" regarding a specific past act relevant to the character trait testified about.
• Limitations:
  • The cross-examiner must have a good faith basis for believing the specific act occurred.
  • Extrinsic evidence is not allowed: The cross-examiner must accept the character witness's answer ("take the answer"). They cannot introduce other evidence (e.g., police reports, other witnesses) to prove the specific act occurred if the witness denies knowledge.

Worked Example 1.1

Defendant (D) is on trial for embezzlement. D calls Witness (W) to testify that D has a reputation in their workplace as an honest person. On cross-examination, the Prosecutor (P) asks W, "Have you heard that D was fired from his previous job for falsifying expense reports?" Is this question permissible?

Answer: Yes, likely permissible. W testified about D's reputation for honesty (a relevant trait). P is inquiring into a relevant specific instance of conduct (falsifying reports relates to honesty) to test the basis of W's knowledge of D's reputation. P must have a good faith basis for asking. If W denies hearing about it, P cannot introduce extrinsic evidence to prove the firing occurred.

Specific Instances of Conduct (FRE 405(b))

Proof by specific instances of a person's conduct is the least common method for proving character and is only allowed in narrow circumstances.

When a person’s character or character trait is an essential element of a charge, claim, or defense, FRE 405(b) permits the character or trait to be proved by relevant specific instances of the person’s conduct (as well as by reputation or opinion testimony).

Key Term: Specific Acts Evidence
Evidence concerning particular past actions of a person offered to prove a character trait.

• Essential Element: Character is an "essential element" only when it is an operative fact that, under substantive law, determines the rights and liabilities of the parties. This is rare.
  • Civil Cases: Examples include defamation (where truth is a defense and plaintiff's character trait is at issue), negligent entrustment/hiring (character of the person entrusted/hired), child custody (parent's character).
  • Criminal Cases: Character is almost never an essential element of a crime or defense (entrapment might be an exception where defendant's predisposition is relevant, but this is controversial).

Worked Example 1.2

Plaintiff (P) sues Defendant (D) for defamation, alleging D called P a "cheat." D asserts truth as a defense. Can D introduce evidence that P cheated on his taxes five years ago?

Answer: Yes. In a defamation case where truth is asserted as a defense, the plaintiff's character trait relevant to the alleged defamation (here, dishonesty or being a "cheat") is an essential element of the defense. Therefore, under FRE 405(b), D can offer specific instances of P's conduct, like tax cheating, to prove that character trait. Reputation and opinion evidence would also be admissible.

Exam Warning

Do not confuse the use of specific acts to prove character under FRE 405(b) (when character is an essential element) with the use of specific acts for non-propensity purposes under FRE 404(b) (MIMIC). FRE 404(b) allows evidence of prior acts to prove things other than character conformity, such as Motive, Intent, absence of Mistake, Identity, or Common plan/scheme. This evidence is admissible even when character is not an essential element, but it cannot be used to argue the person has a propensity to act a certain way.

Summary

When character evidence is admissible under an exception to FRE 404(a)'s general ban:

1. Proof is generally limited to Reputation or Opinion testimony (FRE 405(a)).
2. On cross-examination of a character witness, inquiry into relevant Specific Acts is permitted (but no extrinsic evidence) (FRE 405(a)).
3. Proof by Specific Acts is allowed on direct examination only when character is an essential element of a charge, claim, or defense (FRE 405(b)).

Remember that specific acts evidence may also come in for non-propensity purposes under FRE 404(b) (MIMIC), which is distinct from proving character itself.

Key Point Checklist

This article has covered the following key knowledge points:

• Character evidence is generally inadmissible to prove action in conformity (FRE 404(a)).
• When character evidence is admissible, FRE 405 dictates the methods of proof.
• The primary methods are Reputation and Opinion testimony (FRE 405(a)).
• Character witnesses can be cross-examined about relevant Specific Acts (FRE 405(a)).
• Extrinsic evidence of specific acts is generally inadmissible to prove character circumstantially or to impeach a character witness.
• Specific Acts evidence is admissible on direct only when character is an essential element of the case (FRE 405(b)).
• Distinguish FRE 405(b) (specific acts proving character as an element) from FRE 404(b) (specific acts proving something other than character propensity, like MIMIC).

Key Terms and Concepts

• Reputation Evidence
• Opinion Evidence
• Specific Acts Evidence